U.S. v. Welliver, 78-5565

• Decision Date: 23 August 1979
• Docket Number: No. 78-5565,78-5565
• Citation: 601 F.2d 203
• Parties: 5 Fed. R. Evid. Serv. 264 UNITED STATES of America, Plaintiff-Appellee, v. William E. WELLIVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 203

601 F.2d 203

5 Fed. R. Evid. Serv. 264

UNITED STATES of America, Plaintiff-Appellee, v. William E. WELLIVER, Defendant-Appellant.

No. 78-5565.

United States Court of Appeals,

Fifth Circuit.

Aug. 23, 1979.

Stephen Lindsey Gorman, Tallahassee, Fla., for defendant-appellant.

Donald S. Modesitt, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before MORGAN, FAY and RUBIN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Appellant, William E. Welliver, former president of Bay National Bank and Trust Company, Panama City, Florida (Bay National), was convicted of violations of 18 U.S.C.A. §§ 656 ¹ and 1005 ² pertaining to "willful misapplication" of funds and the making of false entries, respectively. On appeal Welliver presents a number of arguments for the reversal of his conviction.

The case revolves around two similar business transactions involving standard The government's position in this case has been that Welliver unlawfully misapplied bank funds in contravention of § 656 when he paid out approximately $150,000 on one occasion and $341,000 on another occasion and allowed these amounts to remain outstanding without a written obligation for repayment for a matter of months. Additionally, the government argued that, until specific offset entries were made to reconcile the transfers, the bank's Daily Statement of Condition and the Call Report of the Comptroller of the Currency ⁷ contained false entries in violation of § 1005. The alleged false nature of these entries was due, the government asserts, to the fact that they indicated more money was due and owing to Bay National from its correspondent accounts with Florida National and Lewis State Bank than was actually due at that time. Welliver was convicted for both the "willful misapplication" and the "false entry" offenses and instituted this appeal.

banking practices for the handling of certain loan transactions. In the first transaction, on November 19, 1974, Welliver, while president and under the direction of John Christo, Jr., chairman of the board and majority shareholder of the bank, ³ telephoned Lewis State Bank, Tallahassee, Florida, where Bay National had a correspondent account, and instructed them to charge Bay National's correspondent account with approximately $341,000 and use the amount attained thereby to pay off a loan which Lewis State Bank had on account with A. I. Christo. ⁴ Shortly thereafter, a charge ticket from Lewis State Bank, dated November 20, 1974, was received by Bay National's bookkeeping department showing that Bay National's correspondent account had been so charged. Bay National's auditor promptly reconciled this charge by entering it on the bank's reconcilement ledger. ⁵ There was no specific offset made to Bay National's general ledger, however, until February 13, 1975. This delay was due to certain bank accounting procedures. These procedures required that before a specific entry could be made indicating that the bank had paid out a certain sum, there had to be available funds or an account against which the sum could be offset. The delay for roughly three months in the making of this entry was, in effect, a three month loan of approximately $341,000 to A. I. Christo for which interest at the market rate was paid in full. In the second transaction, on February 3, 1975, Welliver, while president and again under the direction of John Christo, Jr., instructed that the Florida National Bank of Jacksonville (Florida National) transfer approximately $150,000 out of Bay National's correspondent account through the Federal Reserve System to the First National Bank of Fort Walton (First National). This money was then used by First National to pay off a loan taken out by the BALBI Corp. ⁶ Within a few days a charge ticket dated February 3, 1975, was received by Bay National's bookkeeping department from Florida National showing that Bay National's correspondent account had been charged approximately $150,000. This charge was entered on Bay National's reconcilement ledger. Again, due to the bank's accounting procedures, no specific offset was made to Bay National's general ledger until several months later on April 4, 1975, this delay being, in effect, a loan which was later repaid in full with interest.

We first address Welliver's argument that the "willful misapplication" counts ⁸ were insufficient because the statutory language of § 656 is not sufficient, in and of itself, to charge an offense, due to the unsettled meaning of the phrase "willful misapplication." More particularly, Welliver asserts that the indictment failed to show how the funds were illegally and unlawfully applied. It is well settled that an indictment must set forth the offense with sufficient clarity and certainty to apprise the accused of the crime with which he is charged. Russell v. United States,369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Bearden, 423 F.2d 805, 810 (5th Cir. 1970). This standard is applied using two criteria: (1) whether the indictment contains the elements of the offense charged and sufficiently apprises the defendant so that he will not be misled while preparing his defense; and (2) whether the defendant is protected against another prosecution for the same offense. Russell v. United States, 369 U.S. at 763-764, 82 S.Ct. 1038; Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). We find that the counts here called into question are sufficient under the criteria set forth above. Each count, following the language of the statute, set forth all the elements of the offense: (1) that the accused was an officer of a bank, (2) that the bank was connected in some capacity with a National bank, (3) that the accused willfully misapplied the funds of said bank, and (4) that the accused acted with intent to injure and defraud said bank. ⁹ Furthermore, the counts specified the date of the offenses, the amounts involved and the name of the bank. United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975); United States v. Schoenhut, 576 F.2d 1010, 1024 (3rd Cir. 1978). Moreover, this court has held that "(i)n a prosecution under 18 U.S.C. § 656, where the offense is set out in the language of the statute, the omission of the means by which the offense was committed does not render the indictment insufficient." United States v. Bearden, 423 F.2d at 810, Citing United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968). Finally, the phrase "willful misapplication" is not of such vague and uncertain application so as to require supplementation Next we address Welliver's contention that, because there was insufficient evidence as a matter of law to support the charges, the trial judge was in error in denying Welliver's motions for a judgment of acquittal and for a new trial. First, Welliver argues that as pertains to the "willful misapplication" offense, there was insufficient evidence of an intent to defraud because there was no showing of a wrongful or improper transfer of funds. The rule in this circuit, however, is that "the government, in prosecutions under § 656, proves the requisite intent to defraud and injure by showing 'an unlawful act voluntarily done, the natural tendency of which may have been to injure the bank.' " (citations omitted). United States v. Killian, 541 F.2d 1156, 1160 (5th Cir. 1976). See United States v. Southers, 583 F.2d 1302, 1305 (5th Cir. 1978); United States v. Tidwell,559 F.2d 262, 265 (5th Cir. 1977). We believe that the evidence, viewed in the light most favorable to the government, ¹⁰ is sufficient to show that Welliver's voluntary manipulations left the bank in the position of having paid out large sums of money without obtaining a legally binding obligation for repayment, an act the natural tendency of which would be to injure the bank. See United States v. Killian, supra. Accordingly, we find no error in the trial judge's refusal to grant the motions for judgment of acquittal and for a new trial in regards to the "willful misapplication" offense. Welliver also argues, that as to the "false entry" offenses, the evidence was insufficient to prove that the entries were actually false nor was there any evidence indicating that it was Welliver's responsibility to modify or correct such an entry. Viewing the evidence in the light most favorable to the government ¹¹ we find that it was sufficient to withstand Welliver's motions. The essence of a § 1005 offense is the intentional making or causing to be made a bank entry which represents what is not true or does not exist. Here there was testimony by Bay National's auditor that he had spoken to Welliver several times regarding the preparation of an offset entry and that Welliver had replied that he was working on it. Thus, the jury could have concluded that Welliver both had responsibility for making of the offset entries and knew the entries were misrepresenting the true facts.

by further averment. United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975). Accordingly, we hold Counts I and VIII of the indictment to be sufficient.

Welliver next argues that he did not receive a fair and impartial trial because of the prejudicial questioning and comments by the trial judge. As Judge Hill stated in United States v. Daniels, 572 F.2d 535, 541 (5th Cir. 1978):

Although a trial court judge may interrogate a witness to clarify his testimony or to insure that a case is tried fairly, Manchack v. S/S Overseas Progress, 524 F.2d 918, 919 (5th Cir. 1975); Curd v. Todd-Johnson Dry Docks, 213 F.2d 864, 866 (5th Cir. 1954), the court in the case on appeal overstepped the bounds of appropriate judicial intervention. When a judge interjects himself into a trial by questioning witnesses, the judge places the opposing counsel in a disadvantageous position. The attorney may hesitate to object to the judge's examination...